H-1B visa requirements for specialty occupations, DOD workers and fashion models

The U.S. Department of State recognizes a list of temporary worker visas, each of them designed to enable a different type of worker to cross our borders from overseas, or across the Canadian or Mexican borders. There is the H-2A visa for temporary agricultural workers, the L visa for intracompany transferees or the P-1 for foreign athletes.

In the tech world, the H-1B visa for a person in a specialty occupation has been a heated issue at times. According to the official website for the U.S. Citizenship and Immigration Services (USCIS), the H-1B visa category applies to people who wish to perform services in a specialty occupation, services of exceptional merit and ability relating to a Department of Defense (DOD) cooperative research and development project, or services as a fashion model of distinguished merit or ability.

Breaking this down further, there are three different categories of visa under the H-1B heading. There is the visa for specialty occupations, which must require at least a bachelor’s degree; be complex enough that only people with a bachelor’s degree can complete the work; positions where the nature of the specific duties is so specialized or complex that the duties are usually associated with a bachelor’s degree level of education; or the employer requires a degree or equivalent for the position. For their part, workers on an H-1B visa must have attained at least a bachelor’s degree from an accredited academic institution; hold a foreign degree equivalent to a U.S. bachelor’s; hold an unrestricted state license, registration or certification authorizing a person to practice the specialty within their state of intended employment; or have education, training or progressively responsible experience in the specialty which is equivalent to the completion of a degree and have recognition of expertise within that specialty.

The DOD can bring in foreign workers for cooperative R&D projects under the H-1B2 visa. Companies can bring over workers on the H-1B2 visa if the job is part of a cooperative research and development project or a co-production project provided for under a government-to-government agreement administered by the DOD, and the job requires at least a bachelor’s degree. Workers are eligible for this visa if they meet one of the same set of criteria for the H-1B visa.

The third category of visa is the H-1B3 visa for fashion models. The position or services rendered must require “a fashion model of prominence.” Eligibility criteria for fashion models seeking the visa requires that they are models of “distinguished merit and ability.” There’s no proof that the H-1B3 visa requirements were written by Mel Brooks, although echoes of his work do exist here.

H-1B and H-1B3 visas require foreign workers to obtain certification of a labor condition application (LCA) filed by the employer with the U.S. Department of Labor (DOL). The LCA requires employers to attest to the wage paid to the foreign worker, which must be the greater of either the typical wage for a position or the prevailing wage in the region. The LCA also requires employers to attest that the working conditions they provide will not adversely affect other workers. Employers violating the terms of the LCA can be fined, sanctioned or barred from using the visa program.

Workers coming over on an H-1B visa may be admitted for three years, extendable up to a maximum of six years. Spouses and unmarried children under 21 of H-1B visa workers may seek H-4 nonimmigrant classification for admission to America during the length of the H-1B visa.